Tue September 4, 2012

'Rights Of Publicity' Extended Beyond The Grave

Einstein's frizzy hair and mustache, Michael Jackson's moonwalk, Ed McMahon's here's Johnny - all familiar, even iconic bits of our culture, contributed by people with one big thing in common: They're dead. But in some states, these rather intangible parts of a dead person's identity are also own-able, sellable articles of property. Thirteen states have passed laws that allow the posthumous transfer of a person's identity to their heirs or to the companies that represent them. At the behest of Bill Cosby, the Massachusetts legislature is currently considering a law that would allow a person's identity to live on with legal protection for 70 years after death.

So what are the rights of the dead? 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Ray Madoff is a professor of law Boston College, the author of "Immortality and the Law: The Rising Power of the American Dead." She joins us today from member station WBUR. Nice to have you with us.

RAY MADOFF: Great to be here.

CONAN: So could I manufacture a wild wig and a stick-on mustache and market that as an Albert Einstein Halloween costume?

MADOFF: Not unless Hebrew University gives you permission.

CONAN: And that Marilyn Monroe - Marilyn Monroe is in the public domain.

MADOFF: Yeah. There's an interesting case. Marilyn Monroe is in the public domain, although you do still see people purporting to own her image.

(LAUGHTER)

CONAN: This is crazy.

MADOFF: Yes, and confusing.

CONAN: And confusing. So these are regulated in this country, state by state.

MADOFF: Yes. It's a state-by-state situation. And sometimes it's difficult to tell which state law applies, because some states purport to apply to people who die, residents of their states. Other states purport to apply their rules much more broadly. So it's a real patchwork, and it's difficult to tell where one patch begins and the other patch ends.

CONAN: So had Marilyn Monroe been a citizen of California when she died, her rights would be protected. But she effectively was a citizen of New York, and they're not.

MADOFF: That's right.

CONAN: That's crazy.

MADOFF: Yeah.

(LAUGHTER)

CONAN: How do the rights - how do the dead have rights, anyway?

MADOFF: Well, you know, that's an interesting question. The dead, in this case, have rights because states have been creating statutes, which give the right of people to control their images after their death. It is a construct of state law and state statute.

CONAN: So when did this get started?

MADOFF: Well, the very first case where the right of publicity was recognized even for the living was not until the 1950s. Up until then, there was a right of privacy. There was an ability to prevent, you know, the use of your name or image in advertising during your life against your wishes. But once you had given up your right of privacy, there was nothing that allowed you to market your name or image. And the very first cases came up in connection with baseball players: some of our earliest celebrities who wanted to be able to market their images to one baseball card company and to keep other baseball card companies from using their image once they had given their right of privacy.

CONAN: Oh, so that if you sold your image to Topps and they made a baseball card, the rival bubblegum company couldn't publish the same picture.

MADOFF: That's right. And at that point where these cases were being litigated in the early 1950s, there were no protections that would prevent other baseball card companies from using your image once you had voluntarily entered into the marketplace.

CONAN: So from baseball players now to the dead.

(LAUGHTER)

MADOFF: Right.

CONAN: When did the dead start getting rights?

MADOFF: Well, that's a very unclear question. What happened was, in the 1950s, the rights to control your image - your name, your image, your likeness - began to be recognized as this right of publicity. And the court, in recognizing this right, said it is a - like a property interest. And once they called it property, it began to develop other interests of property, namely the ability to be sold, and in some states, the ability to be passed on at death.

CONAN: I remember a case in New York. This was a - there was a play called "A Day in Hollywood/A Night in Ukraine" where the Marx Brothers act was essentially ripped off and a court rule that, no, that's the Marx Brothers.

MADOFF: Yes. Now, what would happen now, today in New York, it would be different because the Marx Brothers are dead and so their rights of publicity in New York would not survive death.

CONAN: So...

MADOFF: The other thing that you have to drive distinction between is somebody's image, right, or somebody's creation; a creation, a written work or act or - if often protected by a copyright law. And that still is in play...

CONAN: But the...

MADOFF: ...even in states that don't have a descendible right of publicity.

CONAN: But the use of somebody's image in a commercial, for example, is not protected after death even though that's, well, it is in some cases and it isn't in others.

MADOFF: Right. That's the - you understand it perfectly. You're ready to be a lawyer in this area.

(LAUGHTER)

CONAN: Well, apparently so as everybody else. As a friend of mine told me in Northern Ireland when I was there, if you're not confused, you don't know what's going on.

MADOFF: That's...

(LAUGHTER)

MADOFF: That's it.

CONAN: Just - go ahead.

MADOFF: What's interesting, though, is that what we now have today is we have an expansion of this right of publicity, and it's really being driven not so much by people like Bill Cosby, who was purported behind the Massachusetts case. But in many cases, it's being driven by corporations that have acquired the interests of dead people. And they're really the ones that are pushing things.

You have - one of the states that has the most expansive right of publicity is, surprisingly, Indiana. Now, Indiana isn't known for its big celebrity population. I'm sure they have some celebrities there. But the reason that they have the country's most expansive right of publicity is that Indiana is the corporate home of CMG Worldwide. And CMG owns James Dean, Ingrid Bergman, Jack Kerouac, Duke Ellington, Jesse Owens, and even people like Frank Lloyd Wright, Amelia Earhart and Malcolm X.

And they want to be able to profit as much as they can from the marketing of these images. And so they went to the Indiana legislature and said, we need a very broad right of publicity. And since there was nobody speaking out on the other side, the Indiana legislature happily granted it to them.

CONAN: So when that movie was made about Emilia Earhart, what, a couple or three years ago, presumably, the producers had to make a deal with CMG in Indianapolis.

MADOFF: That's right. And certainly, they would have had the rights to try to exert payments or even to stop it all together.

CONAN: They could have stopped it?

MADOFF: Yes. And this is one of the most troubling aspects of recognizing a descendible right of publicity. We see this a lot in the case involving Dr. Martin Luther King, where his family has really held on to these rights and enforced their rights quite strongly and in surprising ways. So that when the monument to Dr. King was created in Washington, the family exacted a payment of $800,000 for the use of Dr. King's image and words.

CONAN: Let's get some callers in on the conversation. We're talking with Ray Madoff, a professor at Boston College Law School, author of "Immortality and the Law: The Rising of Power of the American Dead." And Leslie is on the line with us from Rochester, New York.

LESLIE: Hi.

CONAN: Go ahead, Leslie.

LESLIE: Thank you for taking my call. Hi.

CONAN: Sure.

LESLIE: To begin with the question that was asked when I called in, no, I'm not a lawyer. I do believe that law - laws are created in attempt to codify what appears to be something that makes sense. I sent it out. But in this case, it seems to me that there needs to be a little paradigm with the - about whose rights we're talking about because the dead themselves would not benefit by any right. It seems to me that the question really needs to be focused more on the heirs' rights because what is then develops by these personalities is something, although not economic, something that led to the economics. And it seems to me that the question - the discussion then needs to be a little about what are the heirs' right with regard to a continuing legacy that contributes economics? Does make sense?

(LAUGHTER)

CONAN: Ray Madoff?

MADOFF: Yes. That's absolutely right. The caller is absolutely right, that it's really not about protecting the dead. It's really about the protecting the heirs and often, in this case, the corporate interests that acquire these rights of the dead. And - but I think, here, what people often don't understand is the many ways that American law draws the distinction between the rights of the living and the rights of the dead. And it does so for good purpose. So, for example, the rights of the dead are no longer protected against libel and slander. So family members might unhappy that their deceased relative is being slandered or libeled in the public.

But we don't protect these rights because we feel that we'd rather have things like biography and journalism and all these other interests. We do a balancing of interest, and so we give rights to the living in favor of the rights to the dead and the families of the dead. Here, with the right of publicity, however, the balance has been tilting the other way, and it's because of these economic players who are using these interests for their advantage.

CONAN: What about the dignity of the dead? For example, the heirs of Joe DiMaggio, known as the Mr. Coffee man, might be terribly upset if he found himself endorsing Starbucks or something.

MADOFF: That's right because these statutes are often marketed as a way of protecting dignity, but, in fact, they often undermine dignity. Who's to say that Albert Einstein would be pleased to know how he has been marketed for everything from computers to Genius Bread? I Mean, it's simply might not be something in his interest at all.

And even more troubling is the way that by creating a property right, you could force the marketing of somebody's interests even if they explicitly said they didn't want it and that...

CONAN: How can that happen?

MADOFF: Well, that's because, first of all, these statutes because they were created by corporate owners of these interests, provide no opportunity for somebody to opt out of the marketing of their name or image or identity. And so let's say you were - you represented J.D. Salinger and you knew J.D. Salinger was very private and didn't want his name to be used to sell coffee or to be put on books that he didn't write; if you are representing J.D. Salinger during his life, there'd be very little that you could do as an estate planner to prevent the marketing of that name. Moreover, if the state recognized a descendible right of publicity, which New Hampshire didn't happen to recognize at the time of his death, the family could be forced to market his name because they would have to, in any event, pay taxes on the fair market value of his identity. And the interplay of the taxes and the ownership interest could require the marketing of the name.

So let me just give a quick example. Some identities can be very valuable, so that Muhammad Ali's identity was recently sold for $62 million. And if an estate has to pay estate taxes at a rate of, let's say, 35 percent, then you're talking about a $20 million tax liability simply by virtue of the fact that they own the name. If they don't have other assets, they're going to be forced to market the name in order to pay those taxes.

CONAN: Ray Madoff is a professor at Boston College Law School. And you're listening to TALK OF THE NATION from NPR News.

And this is John. John's on the line with us from Buffalo.

JOHN: Hi. My question would be, where does this - or how does this affect Elvis impersonators, which is virtually a cottage industry?

(LAUGHTER)

JOHN: And I'll take my answer off the air, please.

CONAN: Thanks very much for the call. A good question.

MADOFF: Yes. If you want to have an Elvis impersonation contest, you have to get permission from the Elvis industry. They very closely monitor that. And I believe, if you're a nonprofit, they'll do it for about $5,000.

CONAN: Let's see if we get Chris on the line. Chris with us from Orlando.

CHRIS: Hi. How are you doing? I'm calling because it seems some celebrities now that are living are already worrying about their rights when they're dead. Specifically, when Coachella recently, they had the hologram of Tupac, and that they kind of recreated a dead person as a living - of a living performer. I heard McCartney and Madonna are now, like, well, when I die, I don't want to be turned into a hologram. And so they're already worrying about their own rights now while they're living. I'm just curious as to where do you think that winds up in what we're talking about today.

CONAN: Even before that, we saw John Wayne resuscitated to endorse products after his death.

MADOFF: Absolutely right. I think that celebrities are right to be concerned about the future uses. We're now able to use dead people in ways that we never could before due to the ability that create computer-generated images. So, for example, people could be acting in movies after their death or performing at rock concerts. And so this will be a continued interest. And the question is whether these artists will be able to opt out of this treatment or not is going to depend upon who's drafting the statutes going forward.

CONAN: Leon Neyfakh, the ideas reporter for The Boston Globe, put it this way in a piece that he wrote about this issue as the legislation makes it to the legislature there in Boston: At the heart of the matter is the existential-sounding question of whether our public personas, the version of us we construct during our lives, are an own-able thing that can be bought and sold, or whether after we've left the stage, they vanish into the air and essentially belong to history.

MADOFF: I think it's very well put.

CONAN: Are there any gestures of yours that you'd like to, you know, make sure...

(LAUGHTER)

CONAN: ...your heirs are going to profit from in the years to come after you've moved on?

(LAUGHTER)

MADOFF: None that I can think of.

CONAN: Go ahead. I'm sorry.

MADOFF: I was going to say, the only thing that's very interesting is in terms of celebrities themselves and the ability of - for future celebrities to create their own new identities. So, for example, we might say that, you know, Madonna's identity is very recognizable and she should be able to protect it. However, Madonna herself built much of her identity on the image of Marilyn Moore, and she cultivated this development. And so these statutes, though, are drafted so broadly that they really provide the possibility of preventing that type of future development for future celebrities so...

CONAN: And quickly, doesn't the First Amendment come into play here?

MADOFF: The First Amendment should definitely come into play. And the problem is that under the existing statutes, we don't have a clear enough cutout for the First Amendment. And so what you have is you've a lot of these corporate and charitable owners of these interests are exerting rights that they don't necessarily have because it does impede upon the rest of our First Amendments. But then, each person has to fight it and so, you know, it has a big chilling effect.

CONAN: You can imagine it must be a nightmare for impressionists.

(LAUGHTER)

CONAN: Ray Madoff, thank you very much for your time today.

MADOFF: Thank you so much for having me.

CONAN: Ray Madoff, a professor at Boston College Law School, the author of "Immortality and the law: The Rising Power of the American Dead." And she joined us today from member station, WBUR, in Boston.

Tomorrow, in this hour, Political Junkie Ken Rudin joins us. It's the TALK OF THE NATION, from NPR News. I'm Neal Conan, in Washington. Transcript provided by NPR, Copyright National Public Radio.